1. STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES Randall Ranes, Director October 2012 Bakersfield City School District Instructional Support Services Division Student Services Department 1

2. Search Defined Search - Any attempt to gain access to any item shielded from open public view and located in a protected place or thing (Van Dyke and Sajurai, [2006]) Search – A governmental (e.g., school) intrusion into an area in which a person has a reasonable expectation of privacy (Terry v. Ohio, [1968] 392 U.S. 1, 88 S.Ct. [1868], 20 L.Ed.2d 889) 2

3. Seizure Defined Seizure (of property) includes a meaningful interference with a person's rights in possessing property Seizure, within the meaning of the Fourth Amendment, includes the willful detention or willful taking of both a person and thing (U.S.C.A. Constitutional Amendment 4)U.S.C.A. Constitutional Amendment 4 Something is “seized” when school officials confiscate or take it away from a student; a student is “seized” when detained 3

4. AUDIENCE QUESTIONS 1. ______________________ 2. ______________________ 3. ______________________ 4. ______________________ 5. ______________________ 4

5. Presentation Summary 1. Define and illustrate contraband, search, and seizure. 2. Describe “school official” as the only position authorized to conduct a search and make a seizure. 3. Identify the factors giving rise to a “reasonable suspicion” and a justification to initiate a search. 4. Describe the factors likely to make a search reasonable and contrast that example with unreasonable searches. 5. Limit searches to areas likely to contain suspected contraband (limit the scope of a search). 6. Plan, design, and carry out a search procedure with a minimal amount of intrusiveness. 7. Describe parameters for accepted procedures for the seizure of property and the detention of students. 5

6. What is Prohibited? Unreasonable searches Unreasonable seizures A legal and reasonable search must begin with the school official having knowledge concerning the contraband to include the possible location(s) constituting a “reasonable suspicion” a student possesses contraband. This knowledge also sets the parameters for the reasonable scope of the search and how intrusive the search may be. 6

7. Student Searches and Contraband All student searches involve contraband *Contraband includes all substances that law, school policies and rules forbid students to possess Diligent enforcement of conduct rules for all students is a way for schools to prevent injuries from negligent (or intentional) actions of a student with dangerous contraband (e.g., a weapon) 7

8. Contraband Illustrated Illegal items ◦Illegal for everyone to possess (e.g., methamphetamine) ◦Illegal for students to possess (e.g., marijuana, tobacco, alcohol) Items that are not illegal to possess but are dangerous and cannot be brought onto school property (e.g., knife) Items board policy prohibits even though not otherwise dangerous or illegal (e.g., laser pointer, cell phone) 8

9. Hypothetical #1. A student reports he observed another student, Joe, show a knife to a third student and then put the knife in his backpack. Do we have the authority to conduct a search? If not, what else would we need to know? If so, what next steps would we want to take? Do we have a reasonable suspicion or justification? Assuming we conduct a search What person(s) should do it? What logistical issues should be considered? What steps could we take to minimize the intrusiveness of the search? Where would the search begin? How would the scope of the search be limited? How would we make sure the search is reasonable? What search techniques and procedures should be used? (see “Search Considerations” and “Search Procedures” sections of Student Search Checklist) 9

10. Example Search Procedures of Individual Student Take two people to get the student Carry the student’s personal belongings to the location of the search Keep the student out of his possessions Tell student to keep his/her hands out of his/her pockets and to follow directions (Heads Up) While en route to the office or location of the search Precede search with questions directly related to nature of infraction (Such questions may make the search unnecessary) Backpack/book bag Wallet/purses, etc. Clothing Stay away areas Avoid touching if at all possible When to get law enforcement involved Parent contact following a search: The principal or designee shall notify the parent/guardian of a student subjected to an individualized search as soon as possible after the search. (Board Policy 601.11) 10

11. General Definition of Student Search A student search is any action taken by a school official to gain access to any item possessed by a student that is shielded from open public view and located in a place or contained within a thing that is reasonably assumed to have a degree of privacy by nature. 11

12. Legal Appropriateness of Student Searches: Key Concepts The courts use legal tests to balance the nature and quality of the intrusion on the student’s Fourth Amendment interests against the importance of the school’s interests alleged to justify the intrusion. Reasonable suspicion or justification to initiate search (also called inception) Reasonable search Scope of search Intrusiveness of search 12

13. What Justifies A Search? Reasonable grounds to suspect the search will turn up evidence of a student's violation of the law or school rules (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 [1985]). Cannot justify a search simply because a student violated a school rule—must be an objective relationship between the rule violation and the search conducted. Facts leading to the reasonable suspicion for the search shall be documented in writing by the school official (Board Policy 601.11 – Search and Seizure). 13

14. Consent Searches: Insufficient Justification to Initiate a Search Student consent to a search will not legitimatize the lack of a reasonable suspicion.  All a student needs to do following a “consent search” is say he/she felt coerced in the presence of school officials, he/she thought there was no other choice than to consent, etc., and the consent will be struck down.  Even if it is determined that consent was freely given, it will not operate to validate an otherwise invalid search. Consent is not a means of legitimizing a potentially illegal and improper search (Pitasky, 1998, I.2:64) (See In re Corey L., 203 Cal. App. 3d 1020 [Cal. Ct. App. 1988]). 14

15. What position can conduct a search? School administrators Any school personnel authorized by the school board to conduct searches (Usually the principal, vice-principal, dean, principal designee, or campus supervisor. The usage of “school officials” does not include teachers.) ◦School officials may search individual students and their property when there is a reasonable suspicion the search will uncover evidence that the student has or is violating the law or the district discipline code (BP 601.11) (emphasis added). 15

16. Search and Student Gender Student searches shall be made by a staff member of the same gender as the student AND will be observed by a second staff member (Board Policy 601.11 – Search and Seizure). 16

17. What Conduct Amounts to a Search? * * In general, the more difficult it is to gain access to something that is inaccessible, the more likely the effort to obtain it amounts to a search. Examples of student search include: Physically examining the student’s “person” Looking through personal possessions Handling or feeling any closed item to determine its contents Opening any closed container Prying open locked containers or possessions Enlarging the view into closed or locked areas Taking extraordinary steps to penetrate natural or other barriers that screen activities or possessions from open public view Examining the contents of a personal electronic device (cell phone) 17

18. Protected Places or Things in the School Setting The student’s person and any immediately connected item Enclosed stalls within public restrooms, dressing areas, and similar spaces when occupied by a student Any closed opaque container Papers, notes, ledgers, calendars, appointment books, literature, and the like (Van Dyke & Sakurai, [2006], p. 19) 18

19. Search of School Properties Lockers and student desks are under the joint control of the student and the district. School officials have the right to open and inspect any locker or desk when they have reasonable suspicion that the search will disclose evidence of illegal possession or activity or when odors, smoke, fire, and/or other threats to student health, welfare, or safety emanate from the locker and/or desk. 19

20. REASONABLENESS OF SEARCH The "reasonableness" of a search depends on two factors: (1) whether there is individualized suspicion that the search will turn up evidence of a student's violation of the law or school rules; and (2) whether the search is: (a)reasonably related to the objectives of the search; and (b)not excessively intrusive in light of the student's age, gender, and/or the nature of the infraction. Remember: The U.S. Constitution permits reasonable searches and bans unreasonable searches. 20

21. Scope of Search: Definition Scope of search is a three-part concept: Sequence of the search (order in which places are searched) Selection of first place to be searched Breadth of search (whether a search can continue if the first place searched did not produce contraband) 21

22. Scope of Search A search is permissible in scope when: (a) the measures adopted are reasonably related to the objectives of the search; and (b) not excessively intrusive in light of the student's age/gender and the nature of the alleged infraction ( New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 [1985]). * The scope of the search must be reasonably related to the violation, which justified the search. The search cannot be legitimized by what is found. 22

23. Example: Scope of Search * A school official may not inspect the text of the student’s personal diary while searching for a knife, because reading the text is not reasonably related to the objective of locating a knife. * Scope is about how far you can go and is tied to what you are legitimately searching for. 23

24. INTRUSIVENESS OF SEARCH The concept of intrusiveness is embedded in reasonableness and scope. School officials are to consider the contraband, age and maturity of student, and carefully match the contraband sought with the search procedures so the result is a minimally intrusive search. As a general rule, officials may search as carefully and meticulously as is consistent with the nature of the objects they are seeking to find (contrast prohibited chewing gum with locking blade knife). 24

25. Restrictions on Student Searches (Note: This is a real big deal) No search of any body cavity of a student (mouth is not a body cavity for these purposes, Penal Code Section 4030) No search involving removal or arranging student's clothing to permit visual inspection of his/her underclothes, breast, buttocks, or genitalia (Education Code Section 49050) No unreasonable searches 25

26. Hypothetical #2. Two students report they saw student Alena on the campus with a plastic bag containing a green and yellow substance. Do we have a reasonable suspicion or justification to conduct a search? If so, what would be the contraband we would be seeking? Where would we start the search to meet the “least intrusive” standard? 26

27. Fundamental Search Rules Must have a good reason and a plan! A search must be justified at its inception and the scope of the search must be reasonably related to the circumstances justifying the search in the first place. (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 [1985]; In re Lisa G., 23 Cal.Rptr.3d 163 Cal.App.4.Dist.,[2004] ) 27

28. Public and Plain View Are Not a Search Open public view: Something suspicious is exposed openly to public detection by sight, smell, and hearing. Open public views are not searches; they do not involve a physical intrusion on any justified privacy interest. 28

29. INCEPTION OF THE SEARCH: When May a Search be Initiated? INCEPTION OF THE SEARCH: When May a Search be Initiated? Must have a legally sufficient reason and a plan! A search may be initiated when there is reasonable suspicion. A plan begins with a starting point. 29

30. Examples of Information Used to Validate the INCEPTION OF A SEARCH and to Give REASONABLE SUSPICION Actual observations of illicit activity Tips or information from a reliable (may be anonymous) source Violation of school policy related to contraband Identification of contraband in the course of a normal interaction with a student (plain view) Reports that a student has threatened to bring weapons to school (Williams v. Cambridge Bd. Of Educ., 186 F. Supp. 2d 808 [S.D. Ohio, 2002]) 30

31. Questions Regarding Scope of Search: Starting Point Where should an employee begin a search if no place has been identified? To what extent can an employee continue a search when the contraband that was the object of the search has been found? 31

32. Scope of Search Continuum: Sequence Most Intrusive Less Intrusive Least Intrusive Student pockets on person Purse/wallet Book bag/ backpack Desk/locker Slid e 32

33. Other Examples: Scope of Search A search for a knife did not justify searching a small zippered side pocket inside a purse (T.J. v. State, 538 So. 2d 1320 [Fla. App. 1989]). A search for stolen coins allows officials to look in very small boxes (Blair v. Commonweath, 225 Va. 483, 303 S.E.2d 881, 886 [1983]). A search for stolen mag (magnesium) wheels does not allow police to search the top shelf of a closet, since the wheels could not fit into such a small space (United States V. Chadwell, 427 F. Supp. 692, 696 [D.Del.1977]). 33

34. Reasonableness of a Search: Additional Factors The search of a student is subject to escalating standards of reasonableness depending on several important characteristics associated with the search: Type of search; How intrusive it is; Who performs the search (school officials v. police); Object of the search; and How imminent is the need that prompted the search (Pitasky, 1998, I.2:5) Individualized suspicion searches should be preceded by a question directly related to the nature of the infraction (e.g., Did you have a knife in the bathroom?) 34

35. Examples of Unreasonable Searches N0T REASONABLE – Teacher reports the student was not “acting right,” was unable to understand the pronunciation of his name where school officials had no prior knowledge of the student (A.H. v. State of Fla., 846. So. 2d 1215 [Fla. Dist. Ct. App. 2003]). N0T REASONABLE – School counselor observed student was “not acting himself,” had bloodshot eyes and that “something wasn’t right,” lacking reasonable suspicion where those characteristics occurred among students not involved with drugs (A.N.H. v. State, 832 So. 2d 1215 [Fla. Dist. Ct. App. 2002]). N0T REASONABLE – Teacher noticed the student had money in his hand and was “fiddling” in his pockets, even though the student had a prior record, had a bad attitude, and school had a growing drug problem (Commonwealth v. J.B., 719 A.2d 1058 [Pa. Super. Ct. 1998]). 35

36. Examples of Unreasonable Searches Continued N0T REASONABLE - Generalized suspicion based on stale information, previous misbehavior, and heavy use of public telephone (Gordon J. v. Santa Ana Unified School Dist. [App. 4 Dist. 1984] 208 Cal.Rptr. 657, 162 Cal.App.3d 530). N0T REASONABLE - Making "eye contact" and looking back in a general direction while walking did not rise to the level of "objective, articulable suspicion" that defendant was carrying drugs as to justify even limited detention under the Fourth Amendment (U.S.C.A. Const.Amend. 4). (Wilson v. Superior Court of Los Angeles County [1983] 195 Cal.Rptr. 671, 34 Cal.3d 777, 670 P.2d 325). 36

37. Examples of Reasonable Searches REASONABLE - Opening school locker with master key following student report marijuana was in the locker ( In re W. [App. 1 Dist. 1973] 105 Cal.Rptr. 775, 29 Cal.App.3d 777). REASONABLE - Search of high school student's locker for handgun, pursuant to information provided by identified mother of another student, was reasonable; five-day-old information was not stale, and search of contents of student's locker was minimal intrusion ( In re Joseph G. [App. 4 Dist. 1995] 38 Cal.Rptr.2d 902, 32 Cal.App.4th 1735). 37

38. Examples of Reasonable Searches REASONABLE – Student was staggering in the hallway and speaking with a slurred speech, behaviors never exhibited by the student in the past and consistent with numerous students encountered in the past under the influence of drugs (In re L.A., 21 P.3d 952 [Kan. 2001]; Greenleaf ex rel. Greenleaf v. Cote 77 F. Supp. 2d 168 [D. Me. 1999]). REASONABLE – Where official relied upon knowledge of gang apparel and observed a student that had, in his back pocket, a bandanna of the color often associated with gangs leading the person to believe a bandanna folded and hanging from a pocket indicated that something was going to happen, the court finding the initial detention, history of gang violence, color and manner of bandanna display justified the search (In Re William V., 4 Cal.Rptr.3d 695 [Cal. Ct. App. 2003]). 38

39. Examples (from Case Law) Continued Present behavior of a student, compared with past observations of the student’s behavior that are compatible with drug use Present observation of a bulge or other noticeable change in parts of student’s clothing along with the knowledge that students have used their clothing to hide contraband Statements of students and/or school personnel that they have seen contraband or been told by the student searched that he had contraband (In Re William V., 4 Cal.Rptr.3d 695 [Cal. Ct. App. 2003]) Facts leading to the reasonable suspicion for the search shall be documented in writing by the school official (Board Policy 601.11 – Search and Seizure). 39

40. Breadth of Search: How Long May A Search Remain Justified? A search of a student may be justified even though the information about a student’s possession of contraband on school grounds occurred several days earlier. Span of time – Once a search is initiated, it may be continued until the amount of time becomes too great (hours or days, as opposed to minutes), after which a new reasonable suspicion will be needed (C.S. v. State, 735, N.E. 2d 273 [Ind. Ct. App. 2000]; In re Joseph G., 38 Cal. Rptr. 902 [Cal. Ct. App. 1995]; Wilcher v. State, 876 S.W. 2d 466 [Tex. Ct. App. 1994]). 40

41. Reasonable Suspicion Distinguished from Probable Cause Probable Cause – Fourth Amendment Standard for law enforcement to justify search Reasonable Suspicion – Fourth Amendment Standard for school officials to justify search Amount of Information ◦In schools, the amount of information needed is only sufficient probability, not certainty. ◦In criminal law, a tip must be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Role of Informant ◦In schools, an anonymous tip is sufficient as long as it contains allegations about a violation of law/rules. ◦Police need the testimony of a reliable informant to meet the probable cause standard. Florida v. J.L., 529 U.S. at 272; Russo, C.J. & Mawdsley, R.D. [2004]. 41

42. Involvement of Law Enforcement Which Fourth Amendment standard (Probable Cause/Reasonable Suspicion) applies? Is there a point at which Miranda warnings apply? When law enforcement joins the school, it is recommended that school officials be directly involved in student searches, including the questioning of students to increase the likelihood of keeping the reasonable suspicion standard and inapplicability of Miranda warnings. 42

43. Nexus Test The reasonable suspicion standard requires a sufficient nexus or connection to exist between: 1. The object sought (contraband); 2. The place to be searched; and the 3. Infraction The school official must be able to establish (and document) a link (connection/nexus) between the person/place to be searched, the object sought, and the violation of the law and discipline code 43

44. Cell Phones Contraband? Does looking at call history, text messages, pictures/videos constitute a search? 44

45. Search Plan Know the contraband Know your facts to establish a reasonable suspicion and what justifies the search Plan the scope of the search to begin with an opportunity for student to give it up with a question Plan the maximum intrusiveness and the starting point Identify the areas in which the suspected contraband could or could not be kept Document, document, document 45

46. The School, Students, and Constitutional Guarantees School officials have comprehensive authority to maintain discipline in schools, but only to the extent such efforts are consistent with fundamental constitutional safeguards (Tinker v. Des Moines). The U.S. Supreme Court recognizes that children are entitled to constitutional protection, but reduces that protection in certain situations to less than would be accorded to an adult (e.g., no search warrant needed for school officials to search). 46

47. Fourth Amendment of the U.S. Constitution (Privacy) The Fourth Amendment of the U.S. Constitution prohibits unreasonable search and seizure; it applies to students in the school setting. The fundamental element protected by the Fourth Amendment is the reasonable expectation of privacy to which each person is entitled (Katz v. United States [1967] 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) 47

48. Potential Actions and/or Claims Arising from Violations of Civil and Constitutional Rights  Lawsuit for injunction relief, damages, and attorneys’ fees  Uniform Complaint Procedure  Disciplinary action against the offending employee or the failure of supervisor to take appropriate action  Commission on Teacher Credentialing – Denial, suspension, or revocation of certificate/credential  Punitive damages - District employees who knowingly and regularly violate these rules could be individually liable for damages Lawsuits can be costly to defend and can force the District to incur large attorney fees to defend. Where the District is found liable, the plaintiff may be awarded damages and attorneys’ fees. Typically, attorneys’ fees for both sides in these cases can exceed $100,000. Damage awards in reported cases have ranged from nominal sums to close to $5,000,000. 48

49. Conclusion Remarks/Questions 1. Contraband, search, and seizure 2. School officials conduct searches and make seizures 3. Searches are preceded by a “reasonable suspicion” (justification at the inception of the search) 4. Searches must be reasonable; unreasonable searches are prohibited by the U.S. Constitution 5. Reasonable searches are limited in scope and intrusiveness 6. Seizures can occur in two ways: contraband and detention of students 49